Law & the Courts

On the Rule of Law, There Are Two Trumps

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Trump’s originalist judges can start to mend America’s cultural rift, even as Trump himself has done the opposite.

The rule of law took a body blow from the president of the United States on January 6. What started with a rally outside the White House ended with an angry mob assaulting Congress. The scenes were some of the most shocking in American history, especially since the mob was apparently whipped up by the rhetoric of President Donald Trump. After four years of defending law, order, and constitutional government, he will leave a legacy that will now be marred by these riots.

It’s a sad end to the Trump administration, whether or not you supported him. It also cuts against so much that Trump did — before the “stop the steal” gambit — to uphold the rule of law, namely through his judicial appointments. While the riots now overshadow everything else, it’s important to remember how the president has transformed the federal courts.

As a lawyer who has watched the federal courts for decades, I believe that no modern president has made a greater impact on the judiciary. That impact can be traced to Trump’s promise at a presidential candidate in 2016. Following the death of Supreme Court Justice Antonin Scalia, he vowed, if elected, to nominate a justice who would uphold the Constitution and the freedoms it protects. Once in office, he kept his word.

Trump began his term by nominating Neil Gorsuch to replace Scalia. Over the next four years, he put two more justices on the Supreme Court: Brett Kavanaugh and Amy Coney Barrett. He placed a further 54 judges on the federal circuit courts, which issue important rulings that affect huge sections of the country. And he appointed 175 federal district-court judges. All told, Trump is responsible for about a quarter of the federal judiciary — an incredible feat in just four years.

More important than the quantity of Trump’s appointees is their quality.

By and large, they are “originalists,” which means they interpret the Constitution according to the meaning of its words at the time it was written. For the originalist, the Constitution’s meaning is fixed, which provides a stable foundation for law and freedom. The alternative is for a judge to “update” the Constitution through his or her rulings, but such revisions inevitably do more harm than good. Judges can’t “update” the Constitution without imposing their will and value judgments on society. At that point, the rule of law is impossible, because the law is grounded in something that’s always shifting — the values and opinions of judges. Originalism is the only way to ensure the rule of law is the law of the land.

That’s why Trump’s appointees are so important. They break with the long history of federal judges who reject originalism — and with it, the rule of law. Just witness how Trump’s own appointees pushed back on the president’s dubious post-election lawsuits, putting the rule of law ahead of political considerations.

For decades, appointees of both Republicans and Democrats have forced their own cultural values onto society. From religious freedom to abortion to marriage to many other issues, judges have twisted the Constitution’s words to fit their own preconceived ideas and political goals. The result has been an ever-deepening cultural divide that now threatens to tear America apart.

That divide is the natural result of abandoning originalism. When justices and judges start dictating policy from the bench, instead of letting lawmakers and elected leaders do so, Americans lose faith in the country’s republican form of government. Instead of fair fights that are won or lost by legislative votes and elections, there are unfair fights in which unelected judges set the country’s course.

As originalists, Trump’s appointees can start to mend America’s cultural rift. While their judicial philosophy prohibits them from taking sides in cultural debates, the result of their rulings will be the return of power to America’s legislative and policy-making institutions, where those debates can be worked out in the way they were intended. That is what the rule of law demands. It is the rule of the people through our elected representatives, not the rule of unelected judges.

President Trump’s record on judicial appointments is second to none. Time will tell if he will be most remembered, however, as the president who sparked a riot that overran Congress, in a terrible assault on the rule of law. Thankfully, the justices and judges he appointed to the federal courts will surely be remembered for their actions to defend the rule of law, and with it, the American experiment in self-government.

Tim Busch is the founder and CEO of the Pacific Hospitality Group and the founder of the Napa Institute.


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